Bandong & Anor v Penrith City Council [2014] NSWLEC 1226

Land and Environment Court New South Wales

Medium Neutral Citation: Bandong & Anor v Penrith City Council [2014] NSWLEC 1226 Hearing dates: 27 October 2014 Decision date: 04 November 2014 Jurisdiction: Class 1 Before: Pearson C Decision: 1. The appeal is dismissed. 2. The exhibits, except Exhibits 1,4 and B, are returned. Catchwords: DEVELOPMENT APPLICATION - Construction of deck - Condition requiring modification - Privacy impacts - Easement Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Penrith Local Environmental Plan 1998 Urban Land Cases Cited: Davies v Penrith City Council [2013] NSWLEC 1141 Meriton Property Services Pty Ltd v Minister for Planning and Infrastructure [2013] NSWLEC 1260 Meriton v Sydney City Council [2004] NSWLEC 313 Super Studio v Waverley Council [2004] NSWLEC 91 Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 Category: Principal judgment Parties: Jose Bandong (First Applicant) Carolyne-Jane Bandong (Second Applicant) Penrith City Council (Respondent) Representation: Mr S Nash (Respondent) Mr J Bandong (in person) Mr M Bullivant, Penrith City Council (Respondent) File Number(s): 10612 of 2014

Judgment 1Mr and Mrs Bandong have appealed under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against a condition imposed on a development consent granted on 20 February 2014 by the respondent Council to development application DA13/1170 for the construction/repair of a deck at the rear of their house at 25 Fireball Avenue Cranebrook (the site). 2The site is located in an area of low density residential development with a mixture of single and two storey dwellings. The house is single storey, setback 4m from the rear boundary. The site has a significant fall to the rear boundary. There is an easement to drain water 2m wide along the rear boundary of the site, which extends across the two lots to the east and the three lots to the west of the site. 3In a statement provided with their appeal (exhibit B) Mr and Mrs Bandong state that in September 2011 the north retaining wall inside their property collapsed, crushing sewer pipes and stormwater pipes and exposing piers and footings of the dwelling. They carried out repair and reconstruction work. In September 2013 the Council wrote to them stating that a development application was required for the repair/construction of the timber deck. After discussing the matter with a Council officer, which included discussion of the option of reducing the timber deck to 25sqm so as to be exempt development, they lodged a development application seeking to have the deck approved. 4The development application DA13/1170 included plans showing the deck as 11.30m wide and 3.05m deep; specifications including details of the retaining wall, footings, joists, deck boards, and balusters; letters from the owners of three properties to the west consenting to construction of the deck encroaching into the easement boundary by approximately 700mm; and a Statement of Environmental Effects (SEE). The SEE states that the purpose of the deck is to utilise a relatively small yard and make it a safe area for children, and notes that there is an established Lilly Pilly hedge spanning approximately 98% of the total width of the back of the house approximately 3m high to provide privacy. 5The Council granted development consent subject to conditions. In this appeal Mr and Mrs Bandong are seeking the deletion of condition 3: 3. The portion of the deck within 2.0 metres from the rear boundary is to be demolished as marked in red on the stamped approved plans. 6Mr and Mrs Bandong contend that the structure is necessary for the purpose of general safety and maintenance of vegetation, for a family using a minimum size yard of uneven landscape; the owners and co-owners of the easement have provided "easement consent letters"; and the structure is readily demountable, and in a controlled state does not substantially interfere with the full use of the easement. 7The Council contends that the development is not compatible with the existing residential character of the area, as decks within 4m of the rear boundary are not predominant in the surrounding area; the development is not compatible with the existing amenity of the area, as it may cause significant impact on visual privacy of the adjoining properties; and the development is not compatible with the existing setbacks of the area. In addition to the merit contentions, the Council raised a jurisdictional issue, discussed below.